The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding without counsel and with
an action for violation of civil rights under 42 U.S.C. § 1983. On
June 4, 2010, the court screened plaintiff's December 28, 2009 first
amended complaint pursuant to 28 U.S.C. § 1915A, and found that
service of process was appropriate for defendants Thomas,*fn1
Ordez, Gudino,*fn2 Noack,*fn3
Savage*fn4 with respect to claims arising under the
Eighth Amendment and for San Joaquin County with respect to a claim
arising under the Americans with Disabilities Act, 42 U.S.C. §§ 12131
et seq. ("ADA"). All of these defendants have appeared and have filed
a motion to dismiss.
I. Standard For Motion To Dismiss
Defendants bring their motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
In order to avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.
The court notes that in his opposition to defendants' motion, plaintiff makes assertions of fact not found in plaintiff's first amended complaint. Because a motion to dismiss under Rule 12(b)(6) is a challenge to the pleadings, facts presented by plaintiff outside of those appearing in the pleadings are not considered. To consider facts presented outside of the pleadings, the court would have to convert defendants' motion to dismiss to a motion for summary judgment. See Fed. R. Civ. P. 12(d). The court will not convert the pending motion to a motion for summary judgment, because, among other things, this action is still in early stages.
II. Eighth Amendment / Fourteenth Amendment
Defendants' first argument is that plaintiff's Eighth Amendment claims must be dismissed because he was a pretrial detainee at the time of the events alleged in his first amended complaint and, therefore, the Eighth Amendment did not apply to plaintiff. Plaintiff's allegations concern events which occurred in the San Joaquin County Jail between January of 2007 and August of 2008. Pursuant to defendants' request attached to their motion to dismiss, the court takes judicial notice of the fact that plaintiff was not actually sentenced to prison until October 24, 2008. See Fed. R. Evid. 201; U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (court may consider judicially noticed facts in deciding motion to dismiss). Plaintiff does not dispute that at all times relevant he was a pretrial detainee in the San Joaquin County Jail.
Because the Eighth Amendment applies only to persons who have been sentenced following a criminal conviction, Bell v. Wolfish, 441 U.S. 520, 528 (1979), plaintiff cannot proceed under the Eighth Amendment. However, as acknowledged by defendants, pretrial detainees receive protection from onerous conditions of confinement from the Fourteenth Amendment and the standards for protection for prisoners under the Eighth Amendment, and pretrial detainees under the Fourteenth Amendment are generally the same. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Therefore, plaintiff will be permitted to proceed with the claims the court previously identified as cognizable under the Eighth Amendment under the Fourteenth Amendment. To the extent that the court identifies Eighth Amendment principles below, the court implies those principles are equally applicable to plaintiff's Fourteenth Amendment claims.
III. General Background Allegations*fn5
Plaintiff alleges that he arrived at the San Joaquin County Jail in January of 2007, and upon arrival he was in need of foot surgery. Surgery was not performed until February 22, 2008. Generally speaking, plaintiff complains about the care he received after surgery.
IV. Defendants Ordez and Gudino
In his opposition to defendants' motion to dismiss, plaintiff requests that defendants Ordez and Gudino be dismissed. Good cause appearing, the court ...